Drugs in checked bags: A Canadian legal quandary

by BY ALAN SHANOFF On Dec 16, 2008

When should we have a reasonable expectation of privacy? Do we have any reasonable expectation of privacy when we check luggage in at an airport?

We know luggage may be X-rayed and subject to a hand search. We know random searches are customary. We know airport security officials and police are looking for anything that might compromise airport or airplane safety or security, but can they also look for evidence of other criminal conduct?

Suppose police or security officials find drugs or other illegal products that don't impact on airport or airplane safety? Should they close their eyes and pretend they didn't see anything?

Brian Crisby of Eastport, Nfld., checked in luggage in which police found 14 grams of cocaine, 62 ecstasy pills and $11,000 in cash. He was charged with possession of drugs for the purposes of trafficking.

His lawyer has argued the evidence should be excluded because police didn't have a search warrant resulting in the infringement of Crisby's Charter right to be free from unreasonable search and seizure, and he just might win.

Here's what Justice Robert Hall had to say about the search earlier this month: "I conclude that Brian Crisby had a reasonable expectation of privacy with respect to the contents of his luggage, save and except for searches by personnel for items that could be used to jeopardize the security of an aerodrome or aircraft. The drugs and money found in his baggage, which are the subject of this proceeding, are not such items and thus Brian Crisby had a reasonable expectation of privacy."

I'm baffled.

If there is no expectation of privacy for one purpose how can there be an expectation of privacy for another purpose?

Isn't checking your luggage analogous to placing your garbage on the street and then complaining when the police search through the garbage?

If the judge's reasoning is correct, transporting drugs in luggage will almost be state sanctioned.

The case goes back to court in January so the judge can hear a motion to exclude the evidence. Based on the judge's ruling on the privacy issue, I think the result can be safely predicted.